Seema Malhotra, Minister for Migration and Citizenship, confirmed the change in a statement to Parliament on 4 December 2024, and stated the position will be kept under review. As a result, the main Home Office eVisa guidance webpage and related webpages have been updated to state that BRP holders and EUSS BRC holders may continue to enter the UK until 31 December 2025 (despite a BRP expiry date of 31 December 2024), provided they continue to have valid immigration permission at the time of entry.

What does this mean for UK businesses? 

Although it is not confirmed in the announcement, online right to work check processes should remain unchanged for both eVisa holders and for those who have not yet applied for their eVisa. eVisa holders should generate a right to work share code using the identity document linked to their UKVI account. BRP holders without an eVisa should generate a share code using their BRP or BRC details. 

UK businesses should consider cascading comms to their employees to encourage them to apply for an eVisa. Businesses should also be aware of the possibility of business disruption if employees experience difficulties returning to the UK after travelling abroad. 

What does this mean for individuals undertaking international travel?

BRP holder without an eVisa

If you are a BRP holder and don’t already have an eVisa, you will be allowed to continue to enter the UK relying on your BRP until at least 31 March 2025, provided your immigration status is still valid. You can monitor the eVisa guidance webpage for any further updates on travel requirements beyond this date.

To reduce the risk of encountering difficulties re-entering the UK, we would suggest you follow the below pre-travel steps:

1. Ensure you travel with your BRP, even if it has expired. 

2. Print out a copy of the approval email from your most recent visa application. You may need this to provide evidence that you still have current immigration permission when you return to the UK.

3. Have the UKVI Customer Contact Centre number handy in case you need to use it. This is +44 (0)203 875 4669.

You should also apply for an eVisa as soon as possible. Follow our ‘step by step’ guide, ‘How do I apply for an eVisa?‘ Note that a separate eVisa must be set up per person, including children.

EUSS BRC holders and other eVisa holders

If you are an EUSS BRC holder, you already have a UKVI account and eVisa as part of the EUSS application process and this should be recognised at the border. Continue to carry your EUSS BRC with you when travelling internationally, even after it has expired.

All eVisa holders should follow the Home Office’s guidance on checking your eVisa is correct before you travel.

Need more help?

Further information is available in our eVisa FAQs. We are also able to help businesses with template eVisa communications, eVisa training for HR teams and eVisa application clinics for affected staff. Please contact a member of our Immigration team about these services.

The Home Office updated the pre-licence priority service guidance on 22 November 2024.

The Home Office updated the Worker and Temporary Worker: priority change of circumstance service guidance on 21 November 2024.

Priority service improvements for sponsor licence applications

One of the main reasons for making a sponsor licence application is so that businesses can fill skills gaps with overseas talent. A processing delay can result in missed opportunities, project setbacks, and potential financial losses. Therefore, businesses are keen to ensure that their sponsor licence applications are processed as swiftly as possible to enhance their ability to respond to market demands and mitigate these risks.

The standard processing time for a straightforward sponsor licence application is 8 weeks. The priority service reduces this to 10 working days. Previously, only 30 applications could be expedited per day, with email requests accepted between 9:00am and 11:59pm, Monday to Friday. The process was highly competitive, often requiring multiple attempts to secure a slot.

The removal of a daily cap isn’t expressly confirmed in the guidance, but reference to the cap has been removed. The change suggests that more businesses can apply for a sponsor licence using the priority service and benefit from the faster turnaround time.

Priority service improvements for sponsor change of circumstances

Having a sponsor licence means taking on a direct responsibility for immigration compliance and compliance with wider UK law. In exchange for being entrusted with the ability to sponsor workers, the Home Office expects to be informed when there is a sponsor change of circumstances.   

The priority service enables sponsors to fast-track critical actions that might otherwise face delays of up to 18 weeks. For a £200 fee per request, eligible actions include:

• Updating organisational details
• Replacing key personnel on the licence
• Requesting additional Certificates of Sponsorship

Under the priority service, the Home Office aims to process these requests within 5 working days of payment, helping sponsors avoid disruptions to visa applications and maintain compliance.

Unfortunately, the Home Office hasn’t removed the daily cap on email requests per day, but they have increased the number of slots from 60 to 100. They have also elongated the operating hours from 9:00am to 7:00am, so the service is now available from 7:00am to 5:00pm Monday to Friday. 

Demand is still extremely competitive, so to use the service, make sure you: 

• Prepare all the necessary information and any documentation in advance;
• Apply on the dot at 7:00am.

Need more help?

Navigating these processes can be time-consuming and complex. If you have questions about the updates discussed in this article or need assistance with your sponsor licence, please contact a member of our Immigration team.

The Energy Secretary considers the renewable energy transition to be ‘unstoppable’ due to the economic benefits it will bring, and because people around the world are now dealing with the realities of the climate crisis every day. It also forms part of the UK’s broader commitment to achieve net zero emissions by 2050. In the UK and around the world, meeting environmental targets will involve large-scale projects for energy generation, as well as in other areas such as industrial processes, transportation, housing and land use. 

What is the current policy approach to achieving net zero from a labour market perspective?

As highlighted by the previous Green Jobs Taskforce, there are current and projected labour shortages in critical sectors such as engineering, technology, construction, project management, and technical maintenance. Workers will be needed to build energy-related infrastructure such as wind farms, solar panelling, e-vehicle charging networks, as well as to progress waste management, agriculture and land management projects. 

In its 2024 progress report to parliament, the Climate Change Committee highlighted that the UK is currently behind in reaching its 2030 target, and that only a third of the required emissions reductions are covered by credible plans. As one of its list of priority actions for the Government, the committee has recommended that a strategy to support skills is published. The purpose of this strategy will be to support workers in sectors that need to grow or transition, as well as communities that may be adversely impacted.

One initiative that is already underway is the introduction of an energy skills passport, with an initial version due to launch from January 2025. The passport will provide cross-sector recognition of training and experience, enabling workers from declining traditional energy sectors, such as oil and gas, to more easily transition into jobs in the growing offshore wind industry.  

At a more general level, the Government plans to develop a more structured evidence-based approach to the labour market, including how to identify and address skills gaps. This will be achieved through collaboration between Skills England, the Industrial Strategy Council, DWP and the Migration Advisory Committee (MAC). 

Due to the urgency of the climate crisis and the ground that already needs to be made up to meet the UK’s net zero commitments, it seems clear that these groups will need to prioritise the question of how to meet labour shortfalls in the renewable energy sector as well as other sectors that will contribute to carbon emission reduction. This should mean close working with the Department for Energy Security & Net Zero.

How can the UK immigration system contribute to meeting net zero?

The MAC is currently working on a Government commission to understand why employers rely on international recruitment to fill IT, telecoms and engineering roles. The MAC is due to report in May 2025. 

It will be interesting to see to what extent the MAC’s conclusions reference the need to meet current and anticipated skills shortages in the renewable energy sector and other green jobs, since a substantial number of these jobs are likely to require expertise in the occupations being examined.

There is also a wider opportunity, within this commission, for the MAC to consider the role and functioning of the previous Shortage Occupation List and the current Immigration Salary List. A discussion of those tools will however be constrained by the Government’s overall ambition to reduce net migration and encourage recruitment from the domestic workforce. 

Looking further ahead, will the Government focus future MAC commissions on groups of occupations only? It may be beneficial for some commissions to be overlaid with a focus on how the immigration system might best contribute to meeting commitments in areas that are highest on the Government’s political agenda, such as global and national environmental sustainability.

The Office for National Statistics is currently working on a statistical definition of green jobs, as well as a green jobs framework. These could provide useful datasets in the future for the MAC to be able to identify which jobs are in shortage and why.   

Once the occupations in shortage have been identified, there are at least three areas the immigration system may be able to assist in addressing them:

• Increasing incentives for international students to train to fill these roles, whether in the UK or abroad;
• Increasing incentives for migrants working in the targeted occupations to come to the UK, or to stay in the UK; and
• Reducing barriers for businesses to progress initiatives that will contribute to meeting the net zero target or other environmental sustainability objectives.

These are discussed in turn below.

Incentives for international students to train in shortage occupations

In its rapid review of the Graduate route, published in May this year, the MAC confirmed that the Graduate route has broadly achieved the objectives set for it by the previous Government. These included assisting to increase the number of international students in higher education, and increasing the value of the UK’s education exports.

Changes to the Graduate route could be made in the future to encourage uptake of specific higher education qualifications, including to emphasise STEM and other qualifications that will equip students to obtain or develop a career in green jobs. This could include factors such as:

• Allowing for a three-year grant of Graduate route permission to those who complete priority qualifications (this is only currently available to those who complete a PhD or other doctoral qualification); and
• Allowing time spent on the Graduate route to count towards settlement in specific circumstances, for example where evidence is provided in the settlement application of having worked for a licenced Skilled Worker sponsor in a priority occupation during the validity of Graduate route permission (having a ‘licenced sponsor’ requirement could minimise the risk of fraudulent claims about work experience being made).

Direct changes to the Student route and/or inter-governmental agreements could also be considered to incentivise international students to consider studying priority courses in the UK before going on to fill green job roles abroad. 

Incentives for migrant workers to come to, or stay in the UK

Finding the workers to fill green jobs is already a global challenge. Aside from those with academic qualifications and professional experience, tradespeople and technicians are also critical for the creation of the infrastructure needed for a green transition. The UK’s messaging to those with the skills and willingness to do the required jobs should be inclusive, and its offer should be as attractive as possible. 

Some of the immigration-system factors that may incentivise individuals to choose the UK are:

• More competitive visa application fees, noting that the UK’s visa fees have risen substantially in recent years and are currently higher than competitor countries such as Canada, Germany, France and the USA;
• Quick processing times;
• Minimal bureaucracy in the application process; and
• Faster qualifying period for settlement, and/or allowing Graduate route work experience to count towards settlement, as discussed above.

Reducing barriers for businesses

The five point immigration plan introduced under the last Government aimed to suppress migration levels in the UK’s main work routes. The substantial increases to salary thresholds introduced under the policy have effectively priced-out many workers in occupations requiring skills below degree level, and workers towards the beginning of their career. This may significantly restrict the feasibility of sponsoring tradespeople and technicians to fill green jobs, as well dampening the offer of (and demand for) post-graduation sponsorship.

Measures that could reduce salary-based and other immigration system barriers for employers seeking to fill green jobs include:

• Introducing a reformed Shortage Occupation List or Priority Occupation List of occupations, with discounts or waiver of immigration-related application fees and/o the Immigration Skills Charge, and other benefits as recommended by the MAC;
• Reintroducing the offshore wind workers’ concession to assist with ramping up offshore wind generation facilities, by reducing the cost to international infrastructure providers of obtaining visas for their workers to install their equipment in the UK; 
• Introducing other industry-based visa concessions for international infrastructure, technology and other green industry businesses, to make concluding and executing partnership agreements and other contracts in the UK more financially viable.  

It is possible that any easing of immigration restrictions to boost the drive towards a greener economy could lead to tightening in others, due to the Government’s overarching aim to reduce net migration. Businesses sponsoring international workers may also be required to sign up to a workforce plan, fair pay agreement and/or workforce training commitments, in line with the Government’s stated plans for immigration system reform.

Where to for UK immigration after COP 29?

As the recent COP 29 summit illustrates, the world needs to accelerate progress on meeting net zero and other environmental objectives. The UK has ambitions to lead and work with other countries to achieve climate security. 

Immediately, and over the coming decades, more people will need to be adequately skilled and available fill a diverse and rapidly-evolving range of green jobs. They also should be as mobile as possible. 

The UK’s immigration system could be adjusted in various ways to prioritise students, workers and businesses capable of filling green jobs and advancing projects contributing to net zero and other environmental policies. However, policy changes in the last couple of years have placed an emphasis firmly on net migration reduction. 

It remains to be seen whether the planned combination of the MAC with Skills England, the Industrial Strategy Council, Department of Work and Pensions will provide evidence-based solutions that can accommodate the often-competing policy stances across Government. We should get a first glimpse of how the MAC grasps its expanded scope when its report on IT, telecoms and engineering occupations is published next May.

If you have any queries about the issues discussed in this article, please contact a member of our Immigration team.

Global mobility: what are the main issues for an employer to consider?

The President-elect’s approach to “America first” is expected to impact international businesses, both in terms of the growth of their business, and where they can employ people when he comes to power. This is not least due to the proposed policies in America that, if implemented, will make it more difficult for employers to employ who they want, where they want, and move people around their organisations globally. 

The change of government is anticipated to have broader effects on where individuals choose (or are able) to live and work in the short and longer-term. Options and choices may relate directly to people flows to and from the US, and to and from regions likely to be affected by the US’s foreign policy under the Trump administration.

How the above will materialise in practice for global mobility professionals in the short-term appears to fall into three areas: 

1. Talent acquisition 

2. Business travel compliance 

3. Impact on US work visa applications

We discuss these in turn below, before setting out some of the nationality and immigration options that may be available for those businesses and individuals now considering a move to the UK.

Talent acquisition issues 

Following in the footsteps of well-known personalities who have said they’d rather live abroad than in the US during a second Trump administration, we may well see an increase in the number of US employees who want to temporarily leave America for the next four years and experience life outside of America. This may particularly be the case for employees who are currently under a visa programme in America and may question or feel unsafe about their continuing visa status. Companies offering long-term remote overseas working, secondments or relocations may well see an increase in their American colleagues wanting to explore these options. 

If individuals prove serious about their intentions to leave or avoid the US, this could impact a business’s talent acquisition options. Businesses may also experience an increase in the costs associated with the immigration and mobility process as employees are relocated around the globe. 

Business travel 

The new President’s immigration policy may well extend to impact on business travel into the US as business trips into the US which may have historically been routine, may not be as easy as they are now. In his first term in office, the President-elect had implemented visa and entry bans for nationals from specific countries. The potential for the revival of this past travel ban should be a key consideration for global mobility professionals and how this may impact on business travellers to the US who are nationals from these previously restricted countries. 

The speed at which the President can implement changes in policy without previous notice as a result of executive actions should also be a consideration, and planning around how to manage changes and contingency planning for disruption to business travel should be undertaken. 

Impact on US work visa applications

In terms of what the new Presidency might mean for business immigration, there is speculation that the processing times for the H-1B and L-1 work routes may again increase as they did under the last Trump administration, and that extensions and green card applications may be made more difficult. Work right petitions for partners of workers in these routes may also be delayed or discontinued.

More generally, the movement of people into America (e.g. an inbound secondment, or relocation) could face some additional challenges as a result of stricter immigration rules that the President-elect has stated will form part of his agenda. At the very least, there are expected to be longer wait times, more scrutiny on visa applications and requests for further evidence to support applications from non-Americans wanting to seek the right to work and live in America.

There are currently conflicting views on whether businesses should consider making a mad dash to make moves pre-20 January 2025 (inauguration day). 

There are certainly concerns expressed by businesses that to benefit from the pre-Trump processes and systems, getting all visa applications and renewals in before this date may be beneficial. However, the increased influx of requests may lead to significant processing delays. 

With the expectation of delays, businesses will want to ensure all potential moves into the US are planned as far in advance as possible to accommodate potential delays and complications regarding visa processes. 

Nationality and immigration options for those considering relocating to the UK 

We have already been receiving enquiries from businesses and individuals who are considering the UK as a place to live in the wake of the election result. Below is a summary of some of the main potential options for adults relocating to the UK. 

British citizenship

Individuals who were born outside the UK and who have a British mother or father who was born in the UK may already be British by descent and not realise it. 

In some other cases, they may be eligible to register as a British citizen. This may apply to those who are not already British but who have a British parent or grandparent.

Family routes

The Partner route may be an option for people who have a spouse, civil partner, or have been in a relationship for at least two years, with someone who is British or has settled status (permanent residence status) in the UK. This route leads to settlement after either five or ten years.

Work routes

If an individual is able to secure an eligible job offer from a licenced UK sponsoring employer, the Skilled Worker route may be suitable. This route can be used for intra-company transfers where the intention is for the transferee to settle in the UK. Alternatively, if only a fixed-term transfer is contemplated within an multinational group with a UK presence, the Senior or Specialist Worker route may be a possibility. Dependants are allowed on these routes. 

Leaders or potential leaders in the areas of academia/research, arts and culture or digital technology, may wish to explore the Global Talent route. This route allows for settlement in as little as three years.

For sponsored temporary work in the creative fields, the Creative Worker route could apply. This provides for an initial stay of up to 12 months, and an extension of up to 12 months to work for the same sponsor.

The UK Ancestry route may be applicable if an individual who intends to work in the UK, holds citizenship of a Commonwealth country (noting that the Commonwealth includes Canada) and who has a grandparent who was born in the UK, the Channel Islands or the Isle of Man. Settlement in this route is possible after five years.

Study-related routes

The UK has a Student route for international students. Those who are planning to study at bachelor degree or higher level may also be eligible in due course for the Graduate route, which allows post-study stay for a further two years (or three years for PhD/doctorate graduates). Note however that dependants may only accompany a student on the Student and Graduate routes where the course of study is a research Masters or higher level (e.g. PhD) course.

Individuals who have graduated within the last five years with a bachelor degree or higher qualification from an eligible top global university (many of which are in the USA) may be able to apply for a High Potential Individual visa. This allows a two-year stay (or three years for PhD/doctorate graduates) and allows dependants.

If you would like further information on the topics raised in this article, or require assistance with an international move, please get in touch with a member of our global mobility team.

In today’s digital landscape, safeguarding personal data is more crucial than ever. With the rapid acceleration of ever more sophisticated cyber threats and attacks, the Home Office is urging sponsors of workers and students to enhance their cyber awareness to protect the sensitive information within the Sponsorship Management System (SMS). Sponsors need to comply with the UK GDPR, and part of this compliance is implementing robust data handling and storage practices to prevent unauthorised access or breaches. Employees should also be trained so they can spot anything suspicious and report it before a breach occurs. Below are some essential tips to keep your data secure.

Be alert to online scams

The Home Office advises you to:

• Avoid suspicious links: Never click on links asking you to verify credentials.
• Check URLs: Ensure website URLs end with ‘.gov.uk’ for secure government sites.
• Protect your login details: Never share your SMS login details (username and password) with anyone.
• Regularly update passwords: Change your SMS password regularly and ensure it is strong and long.
• Use unique passwords: Use different passwords if you have access to more than one SMS account.
• Deactivate inactive users: Remember to deactivate Level 1 users if they leave or change roles in your organisation.
• Keep your contact details updated: Ensure your telephone number and email address are current.
• Maintain active users: Always have at least one, preferably two, active Level 1 users.

Report concerns

If you receive an email or telephone call that seems suspicious, or if you believe your SMS account may have been compromised, report it immediately:

• Employers: businesshelpdesk@homeoffice.gov.uk
• Educators: studyengagementteam@homeoffice.gov.uk
• Business Helpline: 0300 123 4699

Legitimate communications from UKVI

All electronic communications from UK Visas and Immigration (UKVI) at the Home Office regarding your sponsor licence will come from:

• An email address ending in @homeoffice.gov.uk, @fco.gov.uk, or @fcdo.gov.uk
• The Account Management Portal (AMP)
• The Home Office Sponsor Management System

UKVI will never ask for your SMS user ID or password, and will never provide you with a link or password to log into SMS. If there are concerns about the integrity of your SMS account, UKVI will take steps to secure your data, including deactivating users and contacting you with follow-up actions.

By staying vigilant and following these guidelines, you can help ensure the security of the SMS and the personal data it contains.

Further advice and guidance is available on the National Cyber Security Centre (NCSC) website and we have a dedicated data, privacy and cyber team who can assist with any questions you may have.

If you have any queries about managing your sponsor licence, please get in touch with a member of our Immigration team.

International students can be a flexible workforce for UK employers, but they are also at the higher end of the scale when it comes to illegal working risk. Not understanding their work rights and how to evidence and monitor compliance with them can lead to a civil penalty of up to £60,000 per worker, so it’s important that you get this right.

How can I check an international student’s right to work in the UK?

Most Student visa holders undertaking a full-time course of study can be employed in the UK, subject to certain conditions. You can check the conditions by asking the student to provide you with a share code and checking their right to work online here.

As part of the right to work check, you must receive, copy and retain confirmation of the Student’s academic term and vacation times. This information must come from their sponsoring education institution, either directly to the employee in your business with responsibility for right to work checks, or through a letter or email that has been provided by the institution to the student. 

We would suggest not to rely on information published on the institution’s website as evidence of term and vacation times, as this may not directly relate to the student’s course or their personal circumstances.

What hours can a Student work during term-time?

Undergraduate and postgraduate students can be employed up to 20 hours per week during term-time.

Students enrolled in courses below bachelor degree level are limited to 10 hours per week during term-time.

The Home Office considers a week to run from Monday to Sunday, which may not be in line with the working week that your business uses for allocating shifts. You must also ensure that the person responsible for allocating shifts is aware of when the student is in or out of term-time.

Compliance with working hours during term-time can also become more complex if the student has another employer. In that case, both employers need to have procedures in place to ensure the student does not work above their allowed hours.

Can a Student work full-time?

Students with work rights can work full-time before the start of their course, during official term breaks and after they have completed their course.

They are also allowed to work full-time on a work placement that has been assessed by their educational institution as meeting the Home Office’s requirements for work placements.

If you are offering a work placement, the institution should provide you with a letter that confirms the details of the work placement, which you should retain as part of your right to work checks. The letter must include specific information in line with the Home Office’s Employer’s guide to right to work checks. We are often asked to review these letters to check whether all the required details are included. This is because failure to get and retain a compliant letter can lead to an illegal working civil penalty being issued.

If you are considering employing a student who is on a work placement with another employer, you should find out whether the educational institution considers the work placement period to be within or outside term-time, as this will determine how many hours per week they can work for you during the placement.

Normally, a Student can’t be employed in a full-time, permanent role. An exception to this is if the student is within three months of the course completion date for a bachelor degree or higher course at an approved institution and has an outstanding Skilled Worker application (or related administrative review) which was submitted while they still had immigration permission as a Student. You should take care to check and document that the switching provision applies to the Student before employing them in a full-time permanent role.

What work isn’t permitted for a Student?

There are some restrictions on the type of work you can offer to Student visa holders:

• Full-time permanent employment is not allowed, unless the switching provision mentioned above applies;
• They cannot be self-employed or engage in business activity, unless they have successfully completed a bachelor degree or higher course at an approved institution and have an outstanding Graduate route application (or related administrative review); and
• Work as a professional sportsperson (including a sports coach) or entertainer is also not allowed.

The definition of ‘professional sportsperson’ for immigration purposes is very wide, however a Student who is studying at bachelor degree level or above is allowed to play or coach sport as an amateur (i.e. for personal enjoyment and not for a living) or as part of a work placement that is an integral and assessed part of their course.

Some tips for engaging Students

Here are some tips to avoid common pitfalls when engaging a worker who holds a Student visa:

• If the Student withdraws from their course, their right to work stops as well. Be proactive in seeking advice on the employment and immigration implications if this happens.
• Don’t assume that the general term dates listed on an institution’s website apply to everyone. For example, Masters and PhD students often have different schedules. Always get direct confirmation from the institution of the specific term dates that apply to your Student hire.
• To reduce the likelihood of the Student working more hours than they are allowed during term-time:
  • Set up an internal system to track hours worked from Monday to Sunday;
  • Provide right to work training to your staff who schedule shifts; and
  • Advise the Student in writing that they must inform you of any work they are doing for anyone else.
• Carefully check the wording of letters from education institutions about term-time dates, course completion date and work placements and ask for amended versions if they don’t include the necessary information to keep you compliant.
• If you are considering employing a Student who is on a work placement with another employer, seek confirmation from the education institution deems the work placement to be within term-time (most of them do) or outside of it.
• Understand what restrictions apply both before and after a student completes their course, including what work rights they may have when switching to the Skilled Worker or Graduate routes, and document it if a switching provision applies.
• Don’t engage a Student on a self-employed basis unless you are satisfied that the Graduate switching provisions apply to them. And if they do, consider carrying out a full right to work check in line with the Home Office’s current recommendations for engaging self-employed workers.
• Set reminders to review and where appropriate seek follow-up documentation if any evidence of right to work ends earlier than the Student’s work for you, e.g.: if an institution only provides you with confirmation of the term and vacation times for the current academic year.
• Set reminders to review and where appropriate change your monitoring practices or seek follow-up evidence where you anticipate a Student’s circumstances are due to change, e.g.: if they are due to complete their course, or if they have told you they have an extra employer for a fixed period of time.

If you have any questions or need assistance with right to work compliance for Students, don’t hesitate to reach out to our immigration team. We will also be discussing right to work as part of our upcoming Immigration Law Academy on 13 and 14 November 2024, which you can find more information and sign up details for here.

The Employment Rights Bill creates a new state enforcement agency, which likely to be called the “Fair Work Agency”. Initially, this will cover specific areas which are already covered by existing enforcement agencies, plus a new remit over holiday pay.  The Bill also gives the government broad powers to extend the Fair Work Agency’s remit to cover other employment rights.

The Bill sets out a range of enforcement powers, including powers to require individuals to provide information, to enter business premises to get documents, and in some cases to require employers to provide undertakings – backed up by criminal offences. This is potentially a big change towards more state enforcement of employment rights, although questions remain about how quickly this will happen and whether the new agency will have sufficient resources to be effective.

What will the Fair Work Agency cover?

The Bill covers the following areas:

• Rules on employment agencies and employment businesses
• National minimum wage rights – including entitlement to the minimum wage and record-keeping requirements
• Modern slavery offences
• Statutory sick pay
• Holiday pay – the right to payment for holiday, including the right to rolled-up holiday pay for irregular hours and part-year workers
• Gangmasters licencing
• Financial penalties for failure to pay sums ordered by an Employment Tribunal in in a COT3 (a penalty enforcement system from 2016 that is rarely used in practice)

Many of these areas were already covered by existing enforcement agencies.  The Bill will combine the Employment Agency Standards Inspectorate (which deals with employment agencies), HMRC’s National Minimum Wage Enforcement Team, and the Gangmasters and Labour Abuse Authority (which covers modern slavery). It also abolishes the Director of Labour Market Enforcement, who currently oversees the work done by these bodies in order to assess the extent of labour exploitation and set strategic priorities for enforcement.

The most significant new addition for employers is enforcement of rights to holiday pay.  This is not currently subject to enforcement by a state agency, and it is also a notoriously complex area where employers may make mistakes.  

The inclusion of financial penalties for failure to pay tribunal awards and settlements is a bit of an oddity.  Since 2016, an employer who fails to pay can be subject to a penalty payable to the Secretary of State if the claimant completes an enforcement form.  This power is not being used regularly in practice, and published data shows that only 836 claimants used the scheme between the financial years 2016/17 and 2021/22.  

The Bill also gives powers to add to the list of employment rights that are covered by the Fair Work Agency.  This could be very significant, depending on how the power is used – for example, by adding areas such as discrimination, family-related rights, trade union rights, and new laws in the Bill itself such as the right to guaranteed hours.  An extension to the wide-ranging area of discrimination law would be particularly significant (although it is unclear how this would fit with the existing role and powers of the Equality and Human Rights Commission).  Perhaps more likely is an extension to narrower rights, such as statutory pay for family-related leave, to sit alongside enforcement of statutory sick pay.  Any changes are unlikely to happen quickly though, as it seems the Agency will not be up and running before late 2026 at the earliest.  It is also worth noting that the government’s “Next Steps” document does not mention adding new rights, but says that they plan to implement a new regulatory and enforcement unit for equal pay which seems intended to be separate from the Fair Work Agency.

What powers will it have?

A key aspect of the Bill is the powers of enforcement which give the Fair Work Agency its “teeth”.  Extensive powers are planned:

• Power to issue a notice requiring a person to provide information – either by attending a specified time or place to answer questions, or by providing specified information or documents.
• Enforcement officers being able to enter business premises to examine documents, require any person on the premises to produce documents, or check any computer or other equipment used to process or store information or documents.  Enforcement officers can also seize documents.
• Power to request a “Labour Market Enforcement Undertaking” (LME).  If the Secretary of State believes that a person has committed a labour market offence, they can be asked to give an undertaking to comply with any requirements set out in an LME.  A court can make an LME order can be made if an undertaking is refused, and failure to comply with an LME order is a criminal offence.  This only applies to a labour market “offence”, such as civil or criminal offences under national minimum wage legislation.
• However, there are also new criminal offences that can apply to all breaches of employment rights covered by the Fair Work Agency.  It is an offence to knowingly or recklessly produce false documents and information.  It is also an offence to intentionally obstruct enforcement action, or fail to comply with an enforcement requirement without reasonable excuse. The penalty is a fine, imprisonment for up to 51 weeks (in England and Wales), or both.  Corporate officers can also be found guilty of these offences if they consented to the conduct or it was attributable to their neglect.
• Also – and very significantly – the recently-published factsheet about the Fair Work Agency says “Some additional enforcement powers will be added during bill passage. This will include powers to issue civil penalties and to order employers to compensate workers, based on existing powers in the National Minimum Wage Act 1998.”  This suggests that the Fair Work Agency might grow extra teeth as the Bill goes through parliament. 

The powers to require information or documents and to enter business premises will be especially significant for employment rights that were not previously covered by enforcement bodies, particularly the right to holiday pay.  

How significant is this in practice?

The government says that the intention is to “create a strong, recognisable single brand so individuals know where to go for help and lead to a more effective use of resources”.  The overall idea of streamlining employment enforcement agencies makes sense.  The significance of the change depends on the area of law involved.

• Holiday pay. This is significant because the right to paid holiday applies to all workers, it can be so complex, and it is not currently subject to state enforcement.  It is a particular risk for employers who have taken a “wait and see” approach to some of the more complicated areas of holiday pay. While there is no existing criminal offence of failing to pay holiday pay, nor any civil penalties, the factsheet and impact assessment clarify that these are likely to be created in the near future and that they are likely to be modelled on the regime which applies to national minimum wage. This could mean, for example, employers having to pay 100% of any unpaid holiday pay to the Fair Work Agency if a breach is uncovered – potentially even more if the penalty is not paid promptly.  
• Statutory sick pay. There is currently no direct state enforcement of the right to statutory sick pay (SSP).  HMRC can determine whether SSP should be paid if there is a dispute between an employee and employer, but this requires the employee to make a complaint and there are no penalties for getting it wrong.  The extension of the new investigation powers to SSP is quite a big change, but is likely to be of less concern to employers than holiday pay enforcement because the right to SSP is simpler to operate correctly. 
• Employment agencies. This is not a significant change from the current system.  The Employment Agencies Standards Inspectorate already has powers to require information or documents and enter business premises.  They can also require LME undertakings and ask courts to issue LME orders – although it is worth noting that not a single LME order was made in the last reported year.  There is even a risk that scrutiny enforcement work in this area will be diluted by inclusion in a new combined agency, depending on how well the Fair Work Agency is funded and resourced.
• National minimum wage. HMRC already has significant enforcement powers, including the requiring LME undertakings and issuing LME orders, the ability to order employers to make missing payments and the power to impose penalties.  As with the rules on employment agencies, this is more of a change of enforcement body than a major change to the enforcement system itself. 
• Modern slavery. This does not appear to be a significant change to the powers already held by the Gangmasters and Labour Abuse Authority, which can conduct unannounced inspections and require access to premises, the provision of documentary evidence, and interviews with workers. The GLAA already has the power to conduct criminal investigations where an offence is suspected, and the existing modern slavery regime includes criminal sanctions with a maximum penalty of 10 years’ imprisonment. 
• Immigration. – Immigration rules as a whole are not covered by the Fair Work Agency.  There is one change though, as the current system of immigration LME undertakings and orders is being replaced by the provisions in the Bill.  These new provisions are very similar and will not make any significant change in practice.

Ultimately, the significance of the Fair Work Agency for both employers and employees will depend on its resources and funding.  Although it is likely to generate its own revenue to some extent through imposing penalties, it will still need additional resources to do its job effectively. The 2018/19 report from the Director of Labour Market Enforcement highlighted that the likelihood of an HMRC national minimum wage inspection for the average employer was once every 500 years.  It is, of course, more probable that a non-compliant employer will be reported and so subject to investigation.  Nevertheless, to make a real difference the new Agency will need substantial funding.

Next steps and what employers can do

As with most of the reforms in the Bill, the Fair Work Agency is unlikely to be up and running before late 2026 at the earliest – and it may well take longer than this to close down the existing agencies and transfer their responsibilities.  The Bill requires a labour market enforcement strategy to be set every three years, so the first of these will give some guidance on where resources are likely to be focussed.

Employers should already be complying with all of these important rights, particularly those that are backed by criminal and civil penalties such as modern slavery and employment agencies rules.  Holiday pay is the main area where you may want to ensure your house is in order – especially if the Fair Work Agency is given additional enforcement powers.  Although we would expect the Fair Work Agency to target employers perceived to be exploitative, the risks of turning a blind eye to the rules look set to increase. 

For more information about the Employment Rights Bill, see Lewis Silkin – What’s in the Employment Rights Bill?

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Check out our eVisa FAQs for any questions, or get in touch with a member our immigration team.

Using the ‘UK Immigration ID check’ app

We suggest using both your mobile device and a laptop or tablet, but it is possible to use just your smartphone.

a) Search for the ‘UK Immigration: ID Check’ app and download it from the App Store or Google Play Store. Select the app with the purple background square (not the app with the blue background). 
b) Simultaneously on your computer, select this link and select ‘create an account’. Enter your personal details. You will be asked to verify your email address and mobile phone number using an automatically generated 6-digit code. Once done, a QR code will present itself on the computer screen. If it does not appear automatically, ensure you are logged into your UKVI account on your computer. Select ‘confirm your identity’ in your UKVI account and answer the questions. Your QR code will appear.
c) Using the App on your phone, scan the QR code. If this does not work, you can use the ‘connection code’ option. The App will direct you to scan the chip in your identity document and scan your face. Your identity document is your BRP. If you experience issues using your BRP, use your passport and the visa application reference number from your most recent application. 
d) If you only have a smartphone, you can complete part b) and c) using a browser on your phone. Select to use the connection code, rather than the QR code.

The Home Office has published eVisa guidance including a video on how to create a UKVI account. Useful guidance and a process flow is available here. 

Background: what is the MAC reviewing?

On 10 September 2024, the Home Secretary commissioned the MAC to review the financial requirements for family visas under the partner, child and parent routes. The review will focus on the minimum income requirement (MIR) and Adequate Maintenance (AM) test, both of which apply to partners and family members coming to the UK or remaining here.

The MAC has been asked to review the financial requirements in the context of a broad net migration reduction agenda and the intention of the requirements to recognise both the economic wellbeing of the UK and respect for family life.

The commission is broad ranging, including a review the level of the MIR, whether it should be increased and any other related considerations the MAC considers relevant.

The MAC is expected to deliver its report in mid-May 2025. The Home Office will then consider the MAC’s recommendations and whether and when to implement them.

What is the current status of the minimum income requirement?

On 11 April 2024, the MIR was increased (under the previous government) from £18,600 to £29,000, with planned further increases up to £38,700 by early 2025.

The current Home Secretary, Yvette Cooper, has confirmed the requirement will be frozen at £29,000 until the Home Office implements any recommendations from the MAC’s review.

Open call for evidence: how you can share your views

If you’d like to share your personal experience or respond on behalf of your organisation you should respond online to the call for evidence by 23:59 GMT on 11 December 2024.

If you have any questions about the review or require assistance with a family route application, please get in touch with a member of our Immigration team.

What provisions are relevant here?

Paragraph 34K of the Immigration Rules states that if a decision on an application for permission to stay has not been made, any applicant who travels outside the Common Travel Area will have their application automatically withdrawn upon departure.

Section 3C of the Immigration Act 1971 states that if you make an in-time application for permission to stay in the UK, your immigration permission and related immigration conditions are automatically extended while your application (and any connected administrative review or appeal) is pending.

However, the statutory extension of permission under section 3C (often referred to as ‘section 3C leave’) will lapse if you leave the UK (even if you stay within the Common Travel Area).

What are the main things to consider?

You can keep your passport while your application is being processed. However, if you leave the Common Travel Area before receiving a decision on your application to stay, your application will be automatically withdrawn by the Home Office when you depart. While this withdrawal entitles you to a refund of any Immigration Health Surcharge you have paid, your application fee may not be refunded.

Also, if you have already started to benefit from section 3C leave, this will end at the time you depart the UK.

What happens if I try to re-enter the UK after my application has been withdrawn?

If you are a non-visa national, you may be able to return to the UK without getting entry clearance first, but if you do, it will be as a visitor. The rules for many in-country application types (including under work routes) normally do not allow switching status from visitor, and if you were in a work route before your departure, you would not be allowed to continue to work on your return.

You may need to regularise your status by staying outside the UK and making a fresh entry clearance application from abroad. This can be disruptive if you were previously working, as well as expensive if you have to pay for accommodation and other costs while you are waiting for your new visa.

In a more extreme scenario, if the Home Office has closed the route you were applying under (which we have seen happen with some of the Ukraine Scheme routes this year), you may not be able to make afresh application under it.

Will the Home Office take any action if I travel internationally?

Although paragraph 34K has been part of the Immigration Rules for some years, it has often not been enforced. However, we are aware of instances this year where the Home Office has issued notifications of withdrawal to some applicants. This means there is now a higher risk of enforcement than previously.

What should I do to avoid any problems?

If you have international travel plans in the lead-up to making an application to extend your stay in the UK, you may be able to complete your travel before submitting your application. Depending on your circumstances, you may be able to opt for a fresh entry clearance application instead.

Once an in-country application has been submitted, the most straightforward advice is not to travel outside the UK until it has been approved. If, however, an urgent need to travel arises, you should consider seeking immigration advice on the options that may apply to your individual circumstances.

If you have any queries about the topics covered in this article, please get in touch with a member of our Immigration team.